In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Thursday, 21 April 2016

Are Languages Created by One Single Homo sapiens Protected by Copyright?

You may remember that Paramount Pictures and CBS Studios are
suing Axanar Productions and its principal Alec Peters over the short movie Prelude to Axanar (see here
and here).
Plaintiff claims the movie is an unauthorized derivative work, and that it
infringes their copyright in Star Trek.
Plaintiff filed an amended
complaint last month, which details further what they consider to be infringement.

The complaint alleges that one of the infringing elements of
Prelude to Axanar is the character of
Garth of Izar, the legendary Starfleet captain who won the battle of Axanar,
and later became insane, as shown in one of the original Star Trek episodes, Whom Gods
Destroy. The Complaint also alleges infringement in the characters of Soral,
a Vulcan ambassador, Starfleet captain Richard Robau, and historian John Gill.

Plaintiffs also claim copyright infringement in the Klingon
race (a “warrior race”) and their
appearance, and in the Vulcans, which “are
a humanoid race with pointy ears from the planet Vulcan that are responsible in
a large part for the founding of the Federation” and their appearance.
Plaintiffs also claim copyright infringement in the Andorians, the Tellarites,
and the Romulans, the last a species from the planets Romulus and Remus.

Plaintiffs also claim copyright in the costumes worn by the
Enterprise crew, the Vulcan robes, the cowl neck and Starfleet command insignia,
and triangular medals on uniform. If a court would recognize such infringements,
it would set a precedent for fashion designers to claim copyright in their own
works. However, this is highly unlikely, and claiming copyright in a cowl neck,
especially, takes gumption, to say the least.

Can an Invented
Language be Protected by Copyright?

The list of the claims goes on, and it is an interesting
read. I would like to concentrate in this post on the claim in the Klingon
Language, “Klingonese or Klingon, the
native language of Qo’noS” (p.31). Can an invented language be protected by
copyright?

I read online this interesting post
by Cory Doctorow about the issue, wich provides links to other interesting
articles on the Klingon language. Cory Doctorow does not believe it can be
protected by copyright. I learned reading the post and its linked articles that
the Klingon language was created by linguist Marc Okrand, and is a combination of
Hindi, Arabic, Yiddish, Turkish, and Mohawk. It has its own dictionary.

There is no doubt that a natural language cannot be
protected by copyright. A language is a combination of signs, which have
meanings, and the language is organized using a syntax. Natural language evolve
over time, and are created by member of particular tribes of the human species,
following an organic process. As such, natural languages can be described as “procedure, process, system, method of
operation, concept, principle, or discovery” which are not protected by
copyright (§ 102. 2
of the Copyright Act).

But what about a language which is “created”? Cory Doctorow
argues that the Klingon language “admittedly
borrows phonemes from Hindi, Arabic, Tlingit, and Yiddish and grammar from
Japanese, Turkish, and Mohawk” which makes claiming a copyright in it
dubious.

However, the Supreme Court explained in 1879, in its Trade-Marks case, that “[t]he
writings which are to be protected [by copyright] are the fruits of
intellectual labor, embodied in the form of books, prints, engravings, and the
like.” That does not mean that mere “sweat
of the brow” is enough to claim protection of a compilation by copyright,
as explained by the Supreme Court in Feist Publications, Inc. v. Rural Telephone
Service Co.The Supreme Court
ruled in this case that a compilation of facts may be protected by copyright
only if such selection, coordination and arrangement is original enough.
However, a modicum of originally suffices.

Is the Klingon
Language an Original Compilation of Facts?

Feist could be cited
by Plaintiffs to argue that the Klingon language is protected by copyright. Is
the Klingon language merely an unoriginal combination of data? In that case, it
would not be protected by copyright under Feist.
But the Klingon language is original, and original work is protectable by
copyright. The Supreme Court defined originality in Feist as meaning “that the
work was independently created by the author (as opposed to copied from other
works), and that it possesses at least some minimal degree of creativity”
(at 345). It can easily be argued that this is the case with the Klingon
language.

Even if one argues that the Klingon language is merely a
combination of natural languages, it can still be protected by copyright under Feist, as the Supreme Court explained in
this case that factual compilation may be protected by copyright:

“Factual compilations… may possess the requisite originality. The
compilation author typically chooses which facts to include, in what order to
place them, and how to arrange the collected data so that they may be used
effectively by readers. These choices as to selection and arrangement, so long
as they are made independently by the compiler and entail a minimal degree of
creativity, are sufficiently original that Congress may protect such
compilations through the copyright laws” (Feist at 348).

In our case, it could be argued that Marc Okrand compiled
facts, the natural languages, and decided in which order to place them, and how
to arrange them. This work certainly entailed a minimal degree of creativity. I
would say that the Klingon language may be protected by copyright.

Klingon is Not the
Only Original Language Ever Created

The issue of whether a language which has been created is
protected is topical: the television series “Game of Thrones” features its own language, the Valyrian, which was
created by David Peterson and has even a high and a low level of language (hear
them here). David
Peterson wrote a book named “The Art of Language Invention” (he speaks about it here)
and has created several other languages for the movie industry.

Mark Okrand himself has been asked if the Klingon language
is protected by copyright and he answered
that he does not own the copyright, as he created it as a work for hire, but
that he is not sure if Paramount owns it either. And you, what do you think?

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